With Spring Break wrapped up, employees are itching to go on their next vacation. Who to see? When to go? Where to go? Some may be considering a visit to Colorado—beautiful scenery, lots of activities, and oh, yeah, legal marijuana. Since the state legalized recreation marijuana last year, tourists have been pouring into the state to partake in what has become a state booming industry. For some tourists, it only takes a long weekend to enjoy the state's newest offerings: A Dallas-based bus tour company runs buses to Denver dispensaries for just $400 dollars a head (BYOM—buy your own marijuana). Regardless of your beliefs on the matter, it is undeniable that Colorado is a living, breathing, social experiment in legalizing marijuana for recreational use. And other states are following: Alaska, Oregon, and Washington also legalized recreational marijuana in 2014. Problem is, what happens when the high wears off and the tourists cross the state border to go back to work?
As private employers, you may decide that recreational use is impermissible even if it was legal at the time and implement a company policy that reflects this. Zero-tolerance drug policies are completely permissible and enforceable, at least since marijuana use remains illegal under federal law. The most obvious way to monitor compliance is to conduct periodic drug tests of employees. And of course, social media often provides ample evidence of such use.
But if you do not take issue with employees using legal marijuana on their vacations when the use does not impact job performance, it gets more complicated. You may, for example, attempt to distinguish such use from illegal use in your drug policies. But it is difficult to monitor compliance with the policy through drug tests since it is hard to distinguish from illegal marijuana use. Marijuana may stay in a person's system for up to 30 days, meaning that an employee may have smoked marijuana once while on vacation in Colorado and test positive days later when there is no chance that their ability to perform job functions is impaired or threatened. But another person could have illegally used marijuana that morning and get the same positive result. Thus, employers under such drug policies should expect more challenges from employees with failed drug tests. Given this complication, you may be tempted to just issue a complete ban, as above. But as marijuana becomes increasingly common and socially acceptable, good employees may choose to leave if their employers' drug-testing policy is too strict and invades their privacy.
So before summer vacation begins, make sure to review your policies regarding recreational drug use and go over them with your employees. And as with all new laws, make sure to keep up on its developments to ensure your policy is not in violation of state or local law.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
